Deegan

I concur in the judgment. The affidavits as to the condition of the juror Wade, on the afternoon when the case was submitted to the jury for decision, were conflicting, and the judge who presided at the trial, and must have personally observed the juror at the time referred to, was in a far better position than we to determine the truth of the matter; and that he did not believe the juror to have been under the *608 influence of liquor, as charged, is implied from the order denying appellant’s motion for a new trial.

I do not, however, give my assent to that part of the foregoing opinion which seems to intimate that if the juror was in the condition claimed by defendant, the objection now urged was waived because not made before the retirement of the jury. Whatever may be the rule in civil cases, in which it may be said, in a general sense, only the parties thereto are interested in the verdict, the principle of waiver of the right to object to misconduct which disqualifies a juror for the performance of his duties as such, has no application to a criminal trial for a felony. In such a case the constitution guarantees to a defendant the right to a trial by twelve competent…

The defendant was convicted by a jury, of the crime of larceny,—the theft of a calf. From the judgment rendered in the premises, and an order denying him a new trial, he appeals.

The evidence upon which he was tried is mainly circumstantial, but we see no reason to declare, as the defendant contends we should, that the jury were not warranted in returning the verdict of guilty.

In the progress of the trial, a witness for the prosecution, Mr. Zeilor, testified that he saw the' defendant and those claimed to have been with him, on the night of the alleged stealing, at Selma, in Fresno County, between eight and nine o’clock in the evening. Then, upon cross-examination by defendant’s counsel, the witness said he had no conversation with them. When his memory was refreshed by a further question, he was about to state what he had said to them, and presumably what they said to him, when the district attorney *604 objected on the ground that the testimony sought to be elicited was not in cross-examination of anything brought out by him in his examination in chief.

The court sustained the objection, and the defendant excepted, and assigns this ruling of the court as prejudicial…